It was déjà vu all over again on July 20 when the University of Texas-Austin was sued for at least the fifth time for alleged discrimination on the basis of race in its undergraduate admissions.
The complaint, titled Students for Fair Admissions v. University of Texas-Austin, was filed in the U.S. District Court for the Western District of Texas. It claims that two unnamed white students were denied “equal footing” with other applicants because of the university’s “discriminatory admissions policies.”
Ten days earlier, a similar suit filed by the organization in 2019 was withdrawn – or in Texas terminology, nonsuited — in Travis County Texas court. Yet another suit was filed two years earlier in the same Texas court and was dismissed on standing issues.
And don’t forget the precursor cases in 2013 and 2016, known as Fisher I and Fisher II, that went before the U.S. Court of Appeals for the Fifth Circuit and the U.S. Supreme Court. Through it all, the university has survived and maintained its admission policies.
So why is Edward Blum, the mastermind behind all of the suits against UT, taking another run at it? In an interview last week, Blum was circumspect about his motives. Asked if the rightward shift of both the Supreme Court and the Fifth Circuit triggered the new lawsuit, Blum said, “We will continue to bring these challenges regardless of the make-up of the courts.”
But Blum, a UT grad himself, hinted that the latest Texas litigation is a key part of a multi-front battle aimed at dismantling race-based admissions policies for good. Blum is a former stockbroker, not a lawyer, but he has played a major strategic role in litigating both affirmative action and voting rights issues on the conservative side.
Blum said that the University of Texas case and his other high-profile admissions lawsuits against Harvard University and the University of North Carolina have “unique characteristics that make their admissions policies unconstitutional.” Each lawsuit is proceeding at its own pace, Blum said, and it may be that the University of Texas will have to await the outcome of the other cases.
As a result, the new University of Texas case could turn out to be the clean-up hitter that will spell the end of race-conscious university admission programs and fulfill Blum’s aspirations. He claims that the university has race-neutral ways of promoting diversity, yet still improperly uses race as a factor in assessing certain applicants.
“The use of race can’t be re-implemented very year,” Blum said. And he added, “The holding in Grutter must be overturned.”
Grutter v. Bollinger is the 2003 Supreme Court decision that threw a lifeline to universities that have long used race as a factor in admissions, with the goal of building a diverse student body. The Supreme Court and the Fifth Circuit relied on Grutter in both Fisher cases. Conservatives have reviled the decision ever since it was first handed down.
The Supreme Court has changed since the university’s victories, and so has the compliant Fifth Circuit. In Fisher II, Justice Anthony Kennedy wrote a majority opinion supporting the Fifth Circuit and the University of Texas. Justice Brett Kavanaugh replaced the retiring Kennedy in 2018, and Justice Neil Gorsuch joined the court in 2017, replacing the late Antonin Scalia. Both of the new justices were Trump appointees. Their views on affirmative action are scant and uncertain, but it would not be surprising if they voted to strike down the University of Texas policy.
“It’s the start of another long road to the Supreme Court with two Trump appointees since Fisher II,” said Allan Van Fleet, a partner in the Houston office of McDermott Will & Emery who wrote briefs in the Fisher cases on behalf of the university.
As for the Fifth Circuit, five Trump appointees have joined the court and could swing the circuit against the university, depending on the composition of the appeals panel that ultimately handles Blum’s latest case. Judge Patrick Higginbotham wrote for the panel in the Fisher II case that the university’s race-neutral Top Ten Percent plan had increased minority admissions, but he also approved the university’s supplemental “holistic review” plan, which includes race as one of many factors in assessing some applicants.
“We are satisfied that UT Austin has demonstrated that race-conscious holistic review is necessary to make the Top Ten Percent Plan workable by patching the holes that a mechanical admissions program leaves in its ability to achieve the rich diversity that contributes to its academic mission,” Higginbotham wrote.
Blum’s complaint makes only brief mention of the Higginbotham ruling, but asserts that race-based review is no longer needed. The Blum complaint relies heavily on dissent in the Fisher II case written by Justices Clarence Thomas and Samuel Alito Jr., who called the University of Texas plan “affirmative action gone wild.”
Representing Blum’s organization is William Consovoy of the Virginia firm Consovoy McCarthy. Consovoy has also been a personal lawyer for President Donald Trump in recent years. Former U.S. solicitor general and Latham & Watkins partner Gregory Garre represented the university in Fisher, but the legal team has not yet been assembled this time around.
UT spokesman J.B. Bird said in a statement, “We agreed with the judge’s decision to dismiss SFFA’s previous lawsuit, and we remain confident in the lawfulness and constitutionality of UT Austin’s holistic admissions policy, which the U.S. Supreme Court upheld in 2016.”